https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8207

Kinuthia v National Environment Management Authority & another (Petition E130 of 2023) [2026] KEHC 8207 (KLR) (Constitutional and Human Rights) (11 June 2026) (Judgment) Neutral citation: [2026] KEHC 8207 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Constitutional and Human Rights Petition E130 of 2023 PM Nyaundi, J June 11, 2026 IN THE MATTER OF THE ALLEGED CONTRAVENTION ARTICLES 27(4) ,28, 29,31,39,40,41,47,48,49,50 and 51 OF THE CONSTITUTION OF KENYA Between Rumba Kinuthia Petitioner and National Environment Management Authority 1st Respondent The Hon Attorney General 2nd Respondent Judgment Introduction 1.The Petitioner, Rumba Kinuthia, filed this Petition dated 20th April 2023 seeking declarations that his arrest, detention, and prosecution in Kibera Chief Magistrate’s Court Criminal Case No. 4979 of 2012 were unconstitutional and violated his rights under Articles 27(4), 28, 29, 31, 39, 40, 41, 47, 48, 49, 50 and 51 of the Constitution. He also seeks general, aggravated, exemplary, and special damages, together with costs. 2.The Petition arises from a prosecution that spanned seven years and ended in an acquittal under section 215 of the Criminal Procedure Code. The Petitioner contends that the prosecution was malicious and without reasonable cause. The 1st Respondents’ Case 3.The 1st Respondent opposes the Petition and relies on the replying affidavit sworn on 12th June 2023 by its Director General, Mamo B. Mamo. In the said affidavit, it is deposed that the 1st Respondent acted within the confines of its statutory mandate, particularly as conferred under Section 117 of the Environment Management and Coordination Act. It is asserted that all actions undertaken by the Authority were lawful, procedurally sound, and in furtherance of its regulatory obligations. 4.The 1st Respondent further contends that the instant Petition constitutes an abuse of the process of this Court, on account of the Petitioner’s prior litigation over substantially similar subject matter. In that regard, the following proceedings are cited:a.An appeal lodged before the National Environment Tribunal dated 1st October 2012, challenging the refusal to grant an Environmental Impact Assessment licence in respect of the suit properties. The said appeal was subsequently withdrawn by the Petitioner;b.Constitutional Petition No. 559 of 2014, which was, by consent of the parties dated 9th December 2014, consolidated with ELC Petition No. 1434 of 2014. The consolidated petitions were thereafter withdrawn on 8th February 2021, also by consent, upon the matters being marked as settled;c.Milimani Commercial Courts Case No. CMCC E13059 of 2021, wherein the Petitioner sought, inter alia, general damages for false arrest, unlawful confinement, malicious prosecution, and reputational injury, together with special damages. The said suit was struck out on 24th March 2023 for being time-barred under Section 3 of the Public Authorities Limitation Act. 5.On the strength of the foregoing, the 1st Respondent maintains that the present Petition is nothing more than an attempt to re-litigate issues that have previously been placed before competent fora. It is contended that the Petitioner is impermissibly seeking a second bite at the cherry, under the guise of a constitutional petition. 6.The 2nd Respondent, for its part, opposes the Petition through Grounds of Opposition dated 7th July 2023. It is contended that the Petition falls short of the established threshold for constitutional petitions as set out in Annarita Karimi Njeru v Republic (No. 1) [1979] KLR 154 and subsequently affirmed in Mumo Matemu v Trusted Society of Human Rights Alliance & 5 Others [2013] eKLR. 7.The 2nd Respondent further raises a jurisdictional objection, contending that the present proceedings are, in substance, an ordinary civil claim improperly clothed as a constitutional petition. It is asserted that the Petitioner has failed to demonstrate, with the requisite specificity, the manner in which the 2nd Respondent acted unlawfully or in excess of its constitutional and statutory mandate. Accordingly, the 2nd Respondent urges the Court to find that the Petition is misconceived, devoid of merit, and an abuse of the process of the Court. 8.In his further affidavit sworn on 19th July 2023, the Petitioner clarifies that this Petition originates from his prosecution in Milimani Chief Magistrate's Court Criminal Case No. 4979 of 2012. In response to the challenge that the Petition is res judicata he distinguishes the current Petition from the previous litigation between him and the respondents, and urges that the cases are unrelated to the current Petition. 9.He concedes that CMCC No. E13059 of 2021 was struck out, but emphasises that the challenge upon which it was struck out is unrelated. He therefore concludes that the current Petition is not Res Judicata. 10.He submits that the Petition is properly before the Court as he seeks redress for the violation of his constitutional rights. 11.The Petition was canvassed by way of written submissions, which I have carefully considered. Summary Of The Petitioner’s Submissions 12.The Petitioner identifies the following as the issues for determination:a.Whether the present Petition is res judicata;b.Whether the Petition is barred by the limitation provisions under the Public Authorities Limitation Act;c.Whether the Petitioner has established a violation of his constitutional rights;d.Whether the Respondents are liable to compensate the Petitioner, and if so, the quantum of damages payable;e.Who should bear the costs of the Petition. 13.On the question of res judicata, the Petitioner submits that the present Petition is not barred by the doctrine. Reliance is placed on Kenya Commercial Bank Ltd v Benjoh Amalgamated Ltd [2017] eKLR and John Florence Maritime Services Limited & Another v Cabinet Secretary for Transport and Infrastructure & 3 Others [2021] eKLR. It is argued that the present Petition is founded on a distinct factual and legal basis, and that the previously instituted suits were not heard and determined on their merits. Further reliance is placed on Moses Mbatia v Joseph Wamburu Kihara [2021] eKLR for the proposition that a matter struck out, as opposed to being dismissed on the merits, does not trigger the doctrine of res judicata. 14.With regard to limitation, the Petitioner contends that the issues raised in the Petition concern the violation of fundamental constitutional rights and freedoms, and are therefore not amenable to statutory limitation. In support of this position, reliance is placed on Edward Akong’o Oyugi & 2 Others v Attorney General [2019] eKLR and Joan Akinyi Kaba Sellah & 2 Others v Attorney General, Petition No. 41 of 2014. 15.On the substance of the claim, the Petitioner submits that his prosecution was actuated by malice and was devoid of reasonable and probable cause. Reliance is placed on James Karuga Kiiru v James Mwamburi & 2 Others [2001] eKLR. 16.It is further submitted that, having demonstrated the existence of malicious prosecution, the Petitioner is entitled to an award of damages. In that regard, reference is made to Thomas Mboya Oluoch & Another v Lucy Muthoni Stephen & Another [2005] eKLR and Koigi Wamwere v Attorney General [2015] eKLR. On the question of quantum, the Court is urged to be guided by James Alfred Koroso v Attorney General [2008] eKLR. 17.Finally, the Petitioner contends that he is entitled to costs of the Petition, relying on Republic v Rosemary Wairimu Munene, Ex Parte Applicant v Ihururu Dairy Farmers Cooperative Society Ltd, Judicial Review Application No. 6 of 2004 and Cecilia Karuru Ngayu v Barclays Bank of Kenya Ltd & Another [2016] eKLR. Summary Of The 1St Respondent’s Submissions 18.The 1st Respondent frames the following issues for determination:a.Whether the 1st Respondent violated the Petitioner’s rights under the Bill of Rights;b.Whether the Petitioner is entitled to special damages;c.Who should bear the costs of the suit. 19.It is submitted that the actions of the 1st Respondent were undertaken within the scope of its statutory mandate as the regulatory authority responsible for environmental management. The 1st Respondent maintains that the Petitioner has failed to prove, to the requisite legal standard, any violation of his constitutional rights. 20.It is further submitted that the Petition is res judicata, as the issues raised therein were substantially in issue in CMCC No. E13059 of 2021, notwithstanding that the same was struck out. In addition, reliance is placed on Robert Okeri Ombeka v Central Bank of Kenya [2015] eKLR and Kenneth Matiba v Attorney General [1990] KLR 666 for the principle that constitutional violations must be pleaded and proved with precision. 21.The 1st Respondent further contends that the claim for special damages is unproven, and does not meet the threshold of strict proof required by law. In that regard, reliance is placed on Union Bank of Nigeria PLC v Alhaji Adams Ayabule & Another [2011] JELR 48225. 22.The 1st Respondent accordingly urges the Court to dismiss the Petition with costs. Summary of the 2nd Respondent’s Submissions 23.The 2nd Respondent identifies the following issues for determination:a.Whether the Petition meets the threshold of a constitutional petition;b.Whether the 2nd Respondent violated the Petitioner’s constitutional rights. 24.It is submitted that the Petition does not meet the threshold established for constitutional litigation, as the Petitioner has failed to demonstrate with precision the manner in which the 2nd Respondent infringed his rights. Reliance is placed on Kenya Bus Services Ltd & 2 Others v Attorney General & 2 Others [2005] eKLR, Matiba v Attorney General (supra), and Cyprian Kubai v Stanley Kanyonga Mwenda, HC Misc No. 612 of 2002 (Nairobi). 25.The 2nd Respondent further submits that the Petition is not justiciable and constitutes an abuse of the court process, particularly in light of the previous proceedings in CMCC No. E13059 of 2021. Reliance is placed on Wanjiru Gikonyo & 2 Others v National Assembly of Kenya & 4 Others and Matalinga & Others v Attorney General [1972] EA 578 to argue that the Court should decline jurisdiction over improperly framed constitutional claims. Analysis And Determination 26.Having considered the pleadings, affidavits, and submissions by the parties, the issues falling for determination are:a.Whether the Petition is res judicata?b.Whether the Petition meets the threshold of a constitutional petition?c.Whether the Petitioner is entitled to the remedies sought?d.Who should bear the costs of the Petition? Whether the Petition is res Judicata 27.On res judicata, Section 7 of the Civil Procedure Act states as follows-No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court.Explanation. — (1) The expression "former suit" means a suit which has been decided before the suit in question whether or not it was instituted before it.Explanation. — (2) For the purposes of this section, the competence of a court shall be determined irrespective of any provision as to right of appeal from the decision of that court.Explanation. — (3) The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other.Explanation. — (4) Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.Explanation. — (5) Any relief claimed in a suit, which is not expressly granted by the decree shall, for the purposes of this section, be deemed to have been refused.Explanation. — (6) Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating. 28.The Supreme Court provided a definitive restatement of the elements of res judicata in John Florence Maritime Services Limited & Anor v Cabinet Secretary, Transport & 3 Others Petition 17 of 2015, when it stated that for the doctrine to be invoked in a civil matter the following elements must be demonstrated-a)There is a former Judgment or order which was final;b)The Judgment or order was on merit;c)The Judgment or order was rendered by a court having jurisdiction over the subject matter and the parties; ande.There must be between the first and the second action identical parties,ubject matter and cause of action. 29.The Supreme Court reiterated that the doctrine has its footing in the public policy requirement that there must be an end to litigation. The test as set out above is meant to ensure that even as Courts safeguard the public interest, caution must be exercised to ensure that legitimate parties are not locked out of the courts of justice. Thus the party raising the challenge of res judicata has the duty to demonstrate that the challenge meets the legal threshold. 30.It is not disputed that the plaint in the earlier matter CMCC E13059 of 2021 was struck out for being time barred. The Supreme Court in John Florence Maritime Services Limited & Anor v Cabinet Secretary, Transport & 3 Others (Supra), emphasised that the application of the components of the test was conjunctive and not disjunctive. One of the core components of the test is that the matter was ‘heard and finally decided’. In the case of Tee Gee Electrics and Plastics Company Ltd vs. Kenya Industrial Estates Limited [2005] KLR 97 the Court expounded on the requirement that the matter be heard and the issues conclusively determined:Both the policy rationale as well as our case law lean in the direction that a suit will only be deemed to be barred by res judicata when it was heard and determined on the substantive merits of the case as opposed to suits that are dismissed on preliminary technical points. Res Judicata bars a future suit only when the case is resolved based on the facts and evidence of the case or when the final judgment concerned the actual facts giving rise to the claim. For example, dismissal of a case for lack of subject matter or because the service was improper or even for want of prosecution does not give rise to judgments on the merits and therefore do not trigger the plea of res judicata. The last issue (dismissal for want of prosecution) was the issue in The Tee Gee Electrics and Plastics Company Ltd v Kenya Industrial Estates Ltd [2005] KLR 97; LLR CAK 6880. Here the Court of Appeal was explicit that res judicata does not apply if the earlier suit was dismissed for want of prosecution as the same was not heard on merits 31.The earlier matter having been struck out at the preliminary stage for want of jurisdiction, I find that the instant matter is not barred by the doctrine of res judicata. Whether the Petition meets the threshold of a constitutional Petition? 32.The threshold for constitutional petitions was laid down in Annarita Karimi Njeru v Republic [1979] eKLR where the Court stated-“We would, however, again stress that if a person is seeking redress from the High Court on a matter which involvesareferenceto the Constitution, it is important (if only to ensure that justice is done to his case) that he should set out with a reasonable degree of precision that of which he complains, the provisions said to be infringed, and the manner in which they are alleged to be infringed." 33.Further the Court in Mumo Matemu v Trusted Society of Human Rights Alliance & 5 Others [2013] eKLR. A petitioner must identify with reasonable precision the constitutional provisions alleged to have been violated, and demonstrate the manner of such violation. 34.This was affirmed by the Supreme Court in the decision in Communications Commission of Kenya & 5 others vs Royal Media Services Limited & 5 others [2014] eKLR as follows:(349)…Although Article 22(1) of the Constitution gives every person the right to initiate proceedings claiming that a fundamental right or freedom has been denied, violated or infringed or threatened,a party invoking this Article has to show the rights said to be infringed,as well as the basis of his or her grievance. This principle emerges clearly from the High Court decision in Annarita Karimi Njeru v. Republic (1979) KLR 154: the necessity of a link between the aggrieved party, the provisions of the Constitution alleged to have been contravened, and the manifestation of contravention or infringement. Such a principle plays a positive role,as a foundation of conviction and good faith, in engaging the constitutional process of dispute settlement 35.The Petitioner herein contends that his rights under the following Constituional provisions were violated Articles 27 (4), 28, 29, 31, 39, 40, 41, 47, 48, 49, 50 and 51 to wit; the right not to be discriminated against, right to dignity, freedom from slavery, servitude and forced labour, right to privacy, right to freedom of movement and residence, right to property, right to fair labour relations, right to fair administrative action, right to access to justice, rights of arrested person, right to fair hearing and rights of persons detained, held in custody or imprisoned. 36.Beyond establishing that these rights are protected under the Constitution, the Petitioner was required to establish how the violation manifested and by whose hand. The facts of the instant case are on all fours with those in Edward v Attorney General [2026] KEHC 2767 (KLR). Similar to the current case, the Petitioner in the cited case faulted the decision to arrest and prosecute as being without basis and actuated by malice; he relied on his acquittal. 37.The Court in finding that the Petitioner had failed to meet the threshold of a constitutional petition found that the Petition ran afoul of the doctrine of constitutional avoidance and proceeded to dismiss the Petition relying on the decision in C O D & another vs Nairobi City Water & Sewerage Co. Ltd [2015] KEHC 7762 (KLR) the Court noted as follows:Similarly, in Papinder Kaur Atwal -vs- Manjit Singh Amrit Nairobi Petition No. 236 of 2011where after considering several authorities on the issue, Justice Lenaola remarked as follows:All the authorities above would point to the fact that the constitution is a solemn document, and should not be a substitute for remedying emotional personal questions or mere control of excesses within administrative processes….. I must add the following; Our Bill of Rights is robust. It has been hailed as one of the best in any Constitution in the World. Our Courts must interpret it [with] all the liberalism they can marshall. However, not every pain can be addressed through the Bill of Rights and alleged violation thereof. 38.I have thoroughly examined the pleadings presented herein. The Petitioner asserts that his arrest and prosecution were motivated by malice; however, he has not substantiated this assertion beyond the fact of his acquittal. The standard for establishing a claim of malicious prosecution was delineated in the case of George Masinde Murunga v Attorney General [1979] KLR 138 as follows: -a.The plaintiff must show that the prosecution was instituted by the defendant, or by someone for whose acts he is responsible.b.The plaintiff must show that the prosecution terminated in his favour.c.The plaintiff must demonstrate that the prosecution was instituted without reasonable and probable cause.d.He must also show that the prosecution was actuated by malice Whether the Petitioner is entitled to reliefs 39.The evidence before me falls far short of the mark. The Petitioner has not shown that the prosecution was begun without reasonable cause, nor that it was driven by malice. He invokes a host of constitutional rights, but he does not anchor those claims in any facts. For example there is no demonstration that his right of access to justice or his right to a fair trial was in any way compromised. In truth, the assertions stand alone, unsupported by evidence, and cannot sustain the weight he seeks to place upon them. 40.For the foregoing reasons, I find that the Petition is without merit and dismiss it with no order as to costs.It is so ordered SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 11TH DAY OF JUNE 2026.M NYAUNDIJUDGEIn the Presence ofFardosa Court AssistantE.K. Gitonga for 1st Respondent